Specific features of the Immunity from Jurisdiction and from Execution of International Organizations

Abstract

The paper examines the rules on jurisdictional and enforcement immunity of international organizations and warns against the frequent practice, in both national and European courts, of transposing to them the doctrine developed for State immunity. Although both regimes share a functional dimension, State immunity is grounded in sovereignty and the equality of States, whereas the immunity of international organizations derives solely from their constitutive treaties or headquarters agreements, with no basis in customary international law and no link to the exercise of sovereign powers. For this reason, distinctions such as iure imperii/iure gestionis are meaningless in the context of international organizations. The paper also analyses the possibility of waiving immunity, which exists but is limited by the relevant conventional provisions, and emphasises that ensuring compatibility between immunity and the right to effective judicial protection requires the existence of alternative dispute-resolution mechanisms, in line with the ECtHR’s Waite and Kennedy doctrine and with Organic Law 16/2015 when it applies subsidiarily. The central difficulty arises when an international agreement grants full immunity without providing such mechanisms: in these cases, the paper argues that, from the perspective of the domestic judge, the applicability of the agreement should be interpreted in conformity with the Constitution and the ECHR.